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PETITIONER: BRIJENDRA SINGH

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT25/11/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR  636            1981 SCR  (2) 287  1981 SCC  (1) 597  CITATOR INFO :  R          1981 SC1157  (6)  E&R        1991 SC1928  (4,6,8)

ACT:      Uttar Pradesh  Imposition of  Ceiling of  Land  Holding Act, 1960  (Act 1  of 1961) -Section 5(6) proviso (b) Effect of the  Amending Act 1972 (Act 18 of 1973) "Good Faith"-True meaning and scope of.

HEADNOTE:      The Uttar Pradesh Imposition of Ceiling of Land Holding Act 1960  was amended by the Amending Act 1972. Section 5(6) proviso (b) of the Act States :           "(6) In determining the Ceiling area applicable to      a tenure-holders,  any transfer  of land made after the      twenty-fourth day  of January,  1971, which but for the      transfer would  have been  declared surplus  land under      this act, shall be ignored and not taken into account :      Provided that  nothing in  this sub-section shall apply to-           (a) ...........................           (b) a  transfer proved  to the satisfaction of the      prescribed authority  to  be  in  good  faith  and  for      adequate  consideration   and  under   an   irrevocable      instrument  not  being  a  benami  transaction  or  for      immediate or  deferred benefit  of the tenure-holder of      other members of his family. The appellant  sold 25  acres of  land for  consideration by registered deeds dated 2nd January and 9th August, 1971. The Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings  Act, 1960  issued notice  to the appellant to show cause  why 25.96  acres land  from his  holding be  not declared surplus.  The appellant  filed  objections  stating that (i)  the entire land was unirrigated; (ii) there was no source of irrigation in the fields and he had made two sales of  25  acres  for  acquiring  a  site  and  constructing  a residential house.  The Prescribed  Authority  rejected  the objections of  the appellant  and declared  the said land as surplus.      Aggrieved by  the said  order  the  appellant  went  in appeal before  the Appellate  Authority, who, partly allowed the appeal.  The appellant filed a writ petition in the High

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Court, which  was dismissed  in  limine.  By  special  leave petition, the  point for  consideration was  whether a  sale made by  a tenure-holder  on a date between January 24, 1971 and June  8, 1973  for adequate  consideration and  under an irrevocable instrument not being a benami transaction or for immediate or  deferred benefit of the tenure holder or other members of his family, can be held to be not in ‘good faith’ within the  contemplation of  proviso (b) to sub-section (6) of section  5 of the Ceiling Act, merely because the tenure- holder  had   failed  to   prove  the  satisfaction  of  the Prescribed Authority  or the  Appellate Authority  that  the purpose for 288 which the  sale was  made, did  not constitute  an impelling necessity for the sale.      Allowing the appeal, ^      HELD :  It is  clear that  the crucial  date on or from which no tenure-holder is entitled to hold land in excess of the ceiling  area is June 8, 1973. It is a cardinal canon of construction  that   an  expression  which  has  no  uniform precisely fixed meaning, takes its colour, light and content from the context. [293E-F, H]      The benefit of clause (b) of the proviso to sub-section (6) is  available to a transfer made in good faith, that is, to a  bona fide transfer whereby the tenure-holder genuinely and irrevocably  transfers all  right, title and interest in the land in favour of the transferee, in the ordinary course of management  of his  affairs and  which is not a collusive arrangement, or  device or  subterfuge to enable the tenure- holder to  continue to hold the surplus land or any reserved interest in  presenti or  in futuro  therein, (or  merely to convert it  into cash),  and thus  circumvent the  ban under section 5(1)  of the Ceiling Act. In order to be entitled to the benefit  of proviso (b) of Sec. 5(6), a transfer made in good faith,  must satisfy  the further  conditions, (ii)  to (iv), enumerated in the proviso (b). [294C-F]      Once it  is  established  by  the  transferring  tenure holder that  the transfer in question effected in the course of ordinary management of his affairs, was made for adequate consideration  and   he  had   genuinely,   absolutely   and irrevocably  divested   himself  of  all  right,  title  and interest (including  cultivatory possession)  in the land in favour of  the transferee, the onus under Explanation II, in the absence of any circumstances suggestive of collusion, or an intention  or design to defraud or circumvent the Ceiling Act, on  the tenure  holder to  show that  the transfer  was effected in good faith will stand discharged. It will not be necessary for  the tenure to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity. [294G-H, 295A]      The other  conditions of Proviso (b) to Sec. 5(6) being satisfied, the  Appellate Authority  was  not  justified  in holding that  the sales  were not  in ‘good faith’ merely on the ground  that the  construction of a residential house in New Delhi  did not  in his  opinion constitute  a compelling necessity for  the sales. Moreover, in the instant case, the tenure-holder at  the material  time was serving in the army in the  rank of  Brigadier which implies that he was nearing the age  of retirement  from army  service. It  is not shown that he  had any other house where he could live. He had, in fact, borrowed  part of  the cost  of construction  from the Government. There  was therefore  nothing  sinister  in  his intention  if  he  arranged  to  sell  his  lands  to  other cultivators to  raise funds  to acquire  a site  and build a

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residential house  in New  Delhi  where  he  would  live  in reasonable  comfort  after  retirement  from  army  service. [295G-H, 296A-D]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2726 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 23-5-1978  of the  Allahabad High Court in Civil Misc. Writ No. 4497/78. 289      Manoj Swarup and Miss Lalita Kohli for the Appellant.      O. P. Rana and Mrs. Shobha Dixit for the Respondent.      The Judgment of the Court was delivered by      SARKARIA, J.-  This  is  an  appeal  by  special  leave against a  judgment dated  May 23, 1978 of the High Court of Allahabad. The material facts giving rise to this appeal are as under :      The Prescribed  Authority under  Section 10(2)  of  the U.P. Imposition  of Ceiling  on Land Holdings Act, 1960 (Act No. 1  of 1961)  (as amended  by U.P. Act 18 of 1973) issued notice to the appellant to show cause why 25.96 acres out of 44 acres  of irrigated land from his holding be not declared surplus. In  response to  this notice,  the appellant  filed objections stating, inter alia, (i) that the entire land was unirrigated; (ii)  that there was no source of irrigation in field Nos.  1373, 79  and 80;  (iii) that  the appellant had made two  sales of  12.50 acres each, 25 acres in all, for a valid necessity, namely, to raise funds for acquiring a site and constructing  a residential  house in New Delhi. (a) The appellant being  an Army  Officer in  the rank of Brigadier, had after  obtaining permission  on January 2, 1971 from the Army Headquarters,  sold 12.50  acres  of  the  land  for  a consideration of  Rs. 25,000/-  to one  Inderjit Singh  by a registered deed,  dated August  9, 1971, and handed over the possession to the vendee; (b) Similarly, after obtaining the permission of  the Army  Headquarters on January 2, 1971, he sold 12.50 acres of the land for Rs. 25,000/- to one Gurjeet Singh by  another registered  sale-deed and  handed over the possession to  the vendee.  Since the  money raised by these sales was  insufficient to  purchase  a  building  site  and constructing a  house thereon,  the appellant  also raised a loan of Rs. 50,000/- from the Government for that purpose.      The Prescribed  Authority by  its order  dated June 26, 1977, rejected  the objections of the appellant and declared 25.96 acres of the land as surplus.      Aggrieved by the order of the Prescribed Authority, the appellant went  in appeal  before  the  Appellate  Authority (District Judge,  Rampur). who,  by his order dated December 8, 1977,  partly allowed the appeal, holding that the entire land was unirrigated and accordingly declared 16.94 acres of unirrigated land as surplus. The District Judge has not held that the  aforesaid sales  made in  favour of Inderjit Singh and Gurjeet  Singh by  two sale  deeds of  12.50 acres each, were fictitious or Benami, nor has he found that the vendees were not in 290 possession of  the sold  land. The  District Judge  seems to have denied the protection of Proviso (b) of sub-section (6) of Section  5 of  the Ceiling  Act to  the said  two  sales, merely for  the reason  that "the  appellant had  failed  to prove any  impelling necessity for building a house and that he  could  not  do  without  a  house  in  New  Delhi",  and

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therefore, "it  could not be held that the sales in question were not effected to avoid the Ceiling Law."      To impugn  this decision  of the  District Judge, in so far as  he did not uphold the aforesaid sales relating to 25 acres of  land, the  appellant filed  a writ  petition under Article 226  of the  Constitution in  the High  Court, which dismissed the  same in  limine by  its order,  dated May 23, 1978. Hence this appeal by special leave.      The question  of law that has been mooted before us is, whether a  sale made  by a  tenure-holder on  a date between January 24, 1971 and June 8, 1973 for adequate consideration and under  an irrevocable  instrument, not  being  a  benami transaction or  for immediate  or deferred  benefit  of  the tenure-holder or other members of his family, can be held to be not  in ’good  faith’ within the contemplation of proviso (b) to  sub-section (6)  of Section  5 of  the Ceiling  Act, merely because  the tenure-holder had failed to prove to the satisfaction of  the Prescribed  Authority or  the Appellate Authority that  the purpose for which the sale was made, did not constitute an impelling necessity for the sale.      Answer  to   this   question   turns   on   a   correct interpretation of  the expression  "good faith"  used in the aforesaid proviso (b).      Learned counsel  for the  appellant vehemently contends that the  District Judge  had  committed  an  error  of  law inasmuch as  he held  that in order to get the protection of the aforesaid  Proviso (b),  it is essential for the tenure- holder to  prove that  the sale  was made  for some pressing valid necessity.  It is  emphasised that  this  is  not  the requirement of  that provision;  that the  expression  "good faith" only  means  that  it  should  not  be  a  benami  or fraudulent transaction  in which the transferor continues to be the  beneficial owner  or right-holder of the land on the crucial date, viz. June 8, 1973.      It is  emphasised that  in the instant case, it was not disputed that  the  sales  were  made  to  raise  funds  for purchasing a  building site and constructing a house thereon in New  Delhi, that  the  authenticity  of  the  documentary evidence produced  by the  appellant to  establish that fact was not doubted by the Appellate Authority; nor the adequacy of the  sale considerations, nor the fact that the appellant had parted  with possession  of the sold lands; that in this situation, by no stretch of 291 reasoning, it  could be said that the sale was not bona fide or in good faith.      On the  other hand, Shri O. P. Rana stoutly defends the finding, of  the Appellate Authority (District Judge), which has been  upheld by  the High Court, that the sale could not be said  to be  in ’good  faith’ merely because no impelling necessity for making it had been established.      Before dealing  with these  contentions, let  us have a look at  the material  part of sub-section (1) of Section 5, which reads thus:           "(1) On  and from  the commencement  of the  Uttar      Pradesh  Imposition   of  Ceiling   on  Land   Holdings      (Amendment)  Act,   1972,  no  tenure-holder  shall  be      entitled to  hold in  the  aggregate  throughout  Uttar      Pradesh,  any  land  in  excess  of  the  ceiling  area      applicable to him.           Explanation I.-  In determining  the ceiling  area      applicable to  a tenure-holder, all land held by him in      his own  right, whether  in his own name, or ostensibly      in the  name of  any other  person, shall be taken into      account."

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         Explanation II  is not  material for  our  present      purpose.      The Amendment Act, 1972 (Act No. 18 of 1973) (for short called the  Ceiling Act)  came into  force with; effect from June 8,  1973. It  is clear that the crucial date on or from which no tenure-holder is entitled to hold land in excess of the ceiling  area is June 8, 1973. Keeping this in view, let us now  examine sub-section  (6), the relevant part of which reads as under:-      "(6) In  determining the  ceiling area  applicable to a      tenure-holder, any  transfer of  land  made  after  the      twenty-fourth of  January,  1971,  which  but  for  the      transfer would  have been  declared surplus  land under      this Act, shall be ignored and not taken into account:           Provided that  nothing in  this sub-section  shall      apply to-           (a)...............................................           (b) a  transfer proved  to the satisfaction of the      prescribed authority  to  be  in  good  faith  and  for      adequate  consideration   and  under   an   irrevocable      instrument  not  being  a  benami  transaction  or  for      immediate or  deferred benefit  of the tenure-holder or      other members of his family. 292      Explanation I .............................      Explanation II.-  The burden  of proving  that  a  case      falls within  clause (b) of the proviso shall rest with      the party claiming its benefit."      It will  be seen that when sub-section (6) of Section 5 provides that  in determining  the ceiling  area and surplus area, any  transfer of land which but for the transfer would have been  declared surplus  land under  the Act,  shall  be ignored, it  proceeds on  the presumption  that the  tenure- holders being  aware of  the resolution or manifesto adopted by the  ruling All India Congress Party on January 24, 1971, and of  the consensus  at the Chief Minister Conference held in July  1972, to  take measures  to lower  the  ceiling  on agricultural  holdings,  might  make  attempts  to  defraud, defeat and  evade the ceiling law, then in offing, by making fictitious transfers of land in favour of other persons.      The presumption  which underlies  the main provision in Section 5(6) can be displaced, as the Legislature has itself indicated, on  proof of  the conditions  set out  in Proviso (b). Although  the strength of the aforesaid presumption and the nature and quantum required to satisfy the conditions of Proviso (b)  may vary  according to the circumstances of the particular case, yet it can be said as a general proposition that in  the case of transfers made prior to the decision of the Chief  Minister’s Conference  in July  1972 to lower the ceiling the burden under Explanation II on the tenure-holder to establish  the facts  bringing his case within clause (b) of the Proviso, would be lighter than the one in the case of a transfer made after the aforesaid decision in July 1972.      In order  to bring  his  case  within  the  purview  of Proviso (b), the tenure-holder has to show-           (i)  that the  transfer has  been  made  in  ’good                faith’;           (ii)  that   it  is   a  transfer   for   adequate                consideration;           (iii)that it  has been  made under  an irrevocable                instrument; and           (iv) that it  is not  a benami  transaction or for                immediate or  deferred benefit of the tenure-                holder or other members of his family.      There is  no dispute  in  regard  to  the  connotation,

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construction and  existence of  ingredients (ii),  (iii) and (iv) in the instant case. Controversy, however centres round the true meaning and scope of the 293 expression ’good  faith’ within  the contemplation of clause (b) of  the Proviso.  In the  instant  case,  the  Appellate Authority appears  to have  taken the  view-a view which has been upheld by the High Court-that a transfer cannot be said to have been made in ’good faith’ merely because it has been honestly or  genuinely  made  and  satisfies  the  aforesaid conditions (ii), (iii) and (iv), unless it is proved further that it was made for a valid pressing necessity.      The thrust  of the arguments of the learned counsel for the appellant is that the expression ’good faith’ within the contemplation of Proviso (b) only means that the transfer is honestly  and   genuinely  made   and  is  not  designed  to circumvent the  Ceiling Act  or defeat  its object, and that this expression  cannot be  legitimately stretched  so as to import into  Proviso  (b),  as  a  requirement  of  law,  an additional obligation  to prove  that the  transfer was made for a  pressing necessity,  or valid  personal need  of  the transferor. The argument is not devoid of merit.      The expression ’good faith’ has not been defined in the Ceiling Act.  The expression  has several shades of meaning. In the popular sense, the phrase in good faith’ simply means "honestly, without  fraud,  collusion,  or  deceit;  really, actually, without  pretence and  without intent to assist or act in  furtherance of  a fraudulent  or otherwise  unlawful scheme". (See  Words & Phrases, Permanent Edition, Vol. 18A, page 91).  Although the  meaning of "good faith" may vary in the context  of different statutes, subjects and situations, honest intent free from taint of fraud of fraudulent design, is a  constant element  of its  connotation.  Even  so,  the quality  and   quantity  of   the  honesty   requisite   for constituting ’good  faith’ is conditioned by the context and object of  the statute in which this term is employed. It is a cardinal  canon of  construction that  an expression which has no  uniform, precisely  fixed meaning, takes its colour, light and content from the context.      The meaning and scope of the expression ’good faith’ is therefore, to  be considered  in the light of the scheme and purpose of Section 5, in general, and the context of Proviso (b) to  sub-section (6),  in  particular.  We  have  already noticed that  the primary  object of  the  Ceiling  Act,  as adumbrated in  the pivotal  provision in  Section 5(1) is to prohibit and disentitle a tenure-holder from holding land in the aggregate  in the  State of  Uttar Pradesh, in excess of the ceiling area, in his own right, whether in his own name, or ostensibly  in the  name of any other person. The ceiling area and  surplus land  of a tenure-holder under the Ceiling Act, as  already mentioned,  are to be determined as on June 8, 1973 when the U.P. (Amendment) Act. 294 No. 18  of 1973 came into force. A transfer, therefore, made after January 24, 1971 which is designed to serve as a cloak for retention  of a  right or  interest of the transferor in the ostensibly  transferred land  in excess  of the  ceiling area, even on or after June 8, 1973, will be patently not in ’good faith’.  But the  Proviso (b)  to  subsection  (6)  of Section 5  extends the  negative aspect of the concept ’good faith’ a  little further  by indicating,  that even  if  the transfer is  not an  ostensible transfer  and the transferor divests himself  of all  interest and  rights in presenti in the transferred  land, but  reserves some  benefit in futuro for himself  or other  members of  his family, then also the

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transfer will  be not in ’good faith’. A transfer solely for the purpose of converting surplus land into cash without any kind of  need (not  to be confused with legal necessity) may also lack good faith.      Broadly speaking,  the benefit  of clause  (b)  of  the Proviso to subsection (6) is available to a transfer made in good faith,  that is,  to a  bona fide  transfer whereby the tenure-holder genuinely and irrevocably transfers all right, title and  interest in the land in favour of the transferee, in the  ordinary course  of management,  of his  affairs and which  is   not  a   collusive  arrangement,  or  device  or subterfuge to  enable the  tenure-holder to continue to hold the surplus  land or any reserved interest in presenti or in futuro, therein  (or merely  to convert  it into  cash), and thus circumvent  the ban  under Section  5(1) of the Ceiling Act. In  order to be entitled to the benefit of Proviso (b), a transfer  made in  good faith,  must satisfy  the  further conditions, (ii) to (iv), enumerated in the Proviso (b). The positive conditions  laid down in Proviso (b) are : that the transfer should  be  for  adequate  consideration;  that  it should have  been made  under an irrevocable instrument. The negative conditions set out in clause (b) of the Proviso are : that it must not be a benami transaction; that it must not be for  immediate or  deferred benefit  of the  transferring tenure-holder or other members of his family. These tests or conditions (ii),  (iii) and (iv) provided in Proviso (b) may not by  themselves be  conclusive to  hold that the transfer was in  ’good faith’.  For instance,  another important test for judging  the genuineness or otherwise of a sale would be whether or  not cultivatory  possession and enjoyment of the land has  passed under the sale to the vendee. Even so, once it is established by the transferring tenure-holder that the transfer in  question effected  in the  course  of  ordinary management  of   his  affairs,   was   made   for   adequate consideration  and   he  has   genuinely,   absolutely   and irrevocably  divested   himself  of  all  right,  title  and interest (including  cultivatory possession)  in the land in favour of the transferee, the onus under Explanation II. in 295 the absence of any circumstances suggestive of collusion, or an intention  or design to defraud or circumvent the Ceiling Act, on  the tenure-holder  to show  that the  transfer  was effected in ’good faith’, will stand discharged, and it will not be necessary for the tenure-holder to prove further that the transfer  was made  for an  impelling need  or to  raise money for meeting a pressing legal necessity. Although proof of the  fact that  a transfer  was made for a valid pressing necessity, may  highlight or  strengthen  the  inference  in favour of  the genuineness  of the  transfer, it  is not  an indispensable constituent  of ’good faith’, nor is the proof of legal  necessity requisite, as a matter of law, to enable a tenure-holder to avail of the benefit of clause (b) of the Proviso. It  may be  remembered that at the time when such a transfer was  made, there  was no  legal restriction  on his power to  alienate the  whole or any part of his holding. In other words,  at the  time when  such a transfer was made it was not  unlawful, even if it were made without any pressing necessity. It became unlawful by the subsequent enactment of a legal  fiction introduced  in Section 5 (6) of the Ceiling Act (No.  18 of 1973) with retrospective effect from January 24, 1971.  Even so, under this statutory fiction, a transfer of land  made after  January 24, 1971 does not become wholly void for  all purposes;  it can  be ignored and would not be taken into  account in  determining the  ceiling area of the transferring tenure-holder  for purposes of the Ceiling Act,

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and that too, if the following two conditions are satisfied:      (a)  that the land but for the transfer would have been           declared surplus  land under  the U.P.  Act 18  of           1973; and      (b)  that the  transfer is  not of  a kind  covered  by           Proviso (b) to Section 5(6) of the Act. This being the position, once a transfer is shown to be bona fide and   further  satisfies all  the  other  positive  and negative conditions  laid down in the Proviso (b) to Section 5(6), there  is no justification in law to stretch the legal fiction further  and to  spell out from the expression ’good faith’  an   additional  requirement   of  proving  pressing necessity for  the  transfer  before  the  tenure-holder  is entitled to the benefit of the aforesaid Proviso (b).      In the instant case, the two sales in question have not only  been   found  to   be   genuine   and   for   adequate consideration, but  it has  been further  accepted that  the sales were  made by  the tenure-holder  to meet  an ordinary need of  every  house-holder  i.e.  for  raising  funds  for constructing a  residential house  in New  Delhi. The  sales have been held by the Appellate Authority to be not in ’good faith’ merely on the 296 ground that  the construction  of a residential house in New Delhi by  the tenure-holder could not, in the opinion of the Authority,  be   said  to  be  an  "impending"  (impelling?) necessity.  This   approach  and   finding   is   manifestly erroneous.      As discussed  above, in  order to get the protection of Proviso (b)  to Section 5(6), it is not legally necessary to proviso, in  addition to  the  conditions  set  out  in  the Proviso  (b),   that  the  sales  were  for  valid  pressing necessity. Even  so, in  the instant case, it had been shown that the  sales were  made to  raise funds  for  building  a residential house  in New  Delhi which was obviously a valid necessity. The  necessity and  its urgency  was to be judged from the tenure-holder’s point of view. The tenure-holder at the material  time was  serving in  the Army  in the rank of Brigadier which  implies that  he was  nearing  the  age  of retirement from  Army Service.  It is  not shown that he had any other  house where  he could  live.  He  had,  in  fact, borrowed  part   of  the   cost  of  construction  from  the Government. There  was therefore  nothing  sinister  in  his intention  if  he  arranged  to  sell  his  lands  to  other cultivators to  raise funds  to acquire  a site  and build a residential house  in New  Delhi  where  he  would  live  in reasonable comfort after retirement from Army service.      For all  the foregoing  reasons, we  allow this appeal, set aside  the orders of the High Court and of the Appellate Authority and  the Prescribed  Authority in  so far  as they relate to  these two  sales in  question of 12.5 acres each, and  hold  that  both  these  sales  were  entitled  to  the exemption of Proviso (b) to Section 5(6) of the Ceiling Act. The Prescribed  Authority is,  therefore,  directed  not  to ignore these  two transfers,  but  after  taking  them  into account determine  afresh the ceiling area of the appellant. We  make  it  clear  that  the  Prescribed  Authority  shall determine the ceiling area and surplus area of the appellant on the  basis that the whole of the land held by the tenure- holder (appellant) on the crucial date was unirrigated land, as the decision of the Appellate Authority (which was upheld by the High Court) on that issue has become res judicata.      In the  circumstances of  the case,  there will  be  no order as to costs of this appeal.      These, then,  are  the  reasons  for  our  Order  dated

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November 13, 1980, whereby we had allowed this appeal. N.K.A.                                       Appeal allowed. 297